Delhi District Court
State vs . Chanan Kumar @ Alok on 3 August, 2012
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IN THE COURT OF SH. MANISH KHURANA, M. M. OUTER
Rohini, Courts, Delhi
State Vs. Chanan Kumar @ Alok
P. S. Bawana
JUDGEMENT
(a) The FIR no. of the case : 175/2006
(b) Unique Identification No. : 02404R0116492006
(c) The date of commission of offence : 06.05.2006
(d) The name of complainant : HC Ram Niwas, No. 749/NW
(e) The name and parentage of accused : Chandan Kumar @ Alok S/o
Sh. Rama Ram, R/o G276,
Naveen Vihar, near Kali Mata
Mandir, Begumpur, Delhi.
Presently at G18, Naveen
Vihar, Begumpur, Delhi.
(f) The offence complained of : U/s 25/54/59 Arms Act.
(g) The plea of accused : Pleaded not guilty and
claimed trial.
(h) Date of Institution : 22.05.2006
(i) The date on which : 03.08.2012
judgment was reserved
(j) The final order : Acquitted
(k) The date of such order : 03.08.2012
FIR No. 175/06 P. S. Bawana
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Brief statement of the reasons for the decision:
1. The prosecution story in brief is that on 06.05.2006 at about 2.30 pm Main road, in front of NDPL Office, Sector3, DSIDC Bawana, Delhi within the jurisdiction of P S Bawana, the accused was found in possession of one buttondar knife having total length of knife as 24 cm without any permit or license in contravention of notification issued by Delhi Administration and hence the accused has committed an offence u/s 25 Arms Act 1959 for which the present FIR was registered against the accused.
2. After supply of copies U/s 207 Cr.P.C, charge u/s 25 Arms Act was framed against the accused to which the accused pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined 05 witnesses.
4. PW1 Sh. Anil Yadav, UDC Home Department deposed that he was working in the above said department and he brought the notification number F. 13/203/78Home(G) Dated 17/02/79 issued by the then under Secretary Home(General), Delhi Administration Delhi. Copy of the same is Ex. PW1/A(OSR).
5. Opportunity to cross examine the above said witness was given to accused but to no avail.
6. PW2 HC Vedwati deposed that on 06.05.2006 she was posted at P.S. FIR No. 175/06 P. S. Bawana 3 Bawana as Duty Officer from 8.00 am to 4.00 pm. She further deposed that on that day at about 3.40 pm she received a rukka sent by HC Ram Niwas through Ct. Naveen and on the basis of the same she registered the present FIR. She proved the FIR as Ex. PW2/A. She further deposed that she also made endorsement on rukka from point X to Y which is Ex. PW2/B.
7. Opportunity to cross examine the above said witness was given to Ld. counsel for the accused but to no avail.
8. PW3 Ct. Neeraj Kumar deposed that on 06.05.2006 he was posted at P.S. Bawana as Constable and he was on patrolling duty alongwith HC Ram Niwas. He further deposed that at about 2.30 am when they were present in front of NDPL Office, DSIDC, Sector3, Bawana, Delhi they found one person present there and having seen them in uniform he tried to escape from the spot. They apprehended him and on interrogation his name was revealed as Chandan Kumar and on his casual search one buttondar knife was recovered from the right side pocket of his pant. The total length of knife was 24 cm, handle of knife was of 13 cm and the blade was 11 cm. He further deposed that rough sketch of knife was prepared by the IO HC Ram Niwas which is Ex. PW3/A. He further deposed that IO put the knife in a white cloth pullanda and sealed with the seal of RN and seal after use was handed over to him. He further FIR No. 175/06 P. S. Bawana 4 deposed that IO seized the above mentioned knife vide seizure memo Ex. PW3/B. He further deposed that IO prepared rukka and handed over the same to him for the registration of the FIR, accordingly he went to the P. S. and got registered the case and returned at the spot alongwith HC Ranjit Singh the Second IO. First IO handed over the custody of the accused, prepared documents and case property to the Second IO who prepared the site plan at the instance of the first IO and recorded his statement and relieved him from the spot. He further deposed that Second IO arrested the accused vide memo Ex. PW3/C and conducted his personal search vide memo Ex. PW3/D. He further deposed that case property was deposited in the Malkhana and accused was put behind the bars. He identified the accused and the case property i.e. buttondar knife which is Ex. P1.
9. During his cross examination by Sh. S. P. S. Mann, Ld. Counsel for the accused, witness admitted that spot was a public place but no notice was given to the passersby who refused to join the investigation. He further stated that no handing over memo of the seal was prepared by the IO. He further stated that they were patrolling on motorcycle belonging to HC Ram Niwas and the distance between the spot and the Police Station was about 2 ½ 3 Km. He further stated that he took the rukka to Police Station at about 3.30 pm on motorcycle and he returned at the spot at FIR No. 175/06 P. S. Bawana 5 about 5.30 pm. He further stated that accused was arrested at about 6.30 pm. He further stated that they finally left the spot at 8.00 pm on the motorcycle of the Second IO alongwith accused. He denied the suggestion that he did not join the investigation in the present case or that the buttondar knife was planted upon the accused. He further denied the suggestion that nothing was recovered from the accused or that.
10.PW4 Head Ct. Ram Niwas deposed that on 06.05.2006 he was posted at P. S. Bawana as Constable and he was on patrolling duty alongwith Ct. Neeraj. He further deposed that at about 2.30 am when they were present in front of NDPL Office, DSIDC, Sector3, Bawana, Delhi they found one person present there and having seen them in uniform he tried to escape from the spot and they apprehended him. On interrogation of the said person whose name was revealed as Chandan Kumar and his casual search one buttondar knife was recovered from the right side pocket of his pant. He further deposed that he requested 34 passersby to join investigation but none agreed and left the spot without disclosing their names and addresses. He further deposed that he prepared rough sketch of knife already Ex. PW3/A and he put the knife in a white cloth pullanda and sealed with the seal of RN and seal after use was handed over to Ct. Neeraj. He further deposed that he seized the above mentioned knife vide seizure memo already Ex. PW3/B. He further FIR No. 175/06 P. S. Bawana 6 deposed that he prepared the rukka Ex. PW4 and handed over the same to Ct. Neeraj for registration of the FIR and got the FIR registered through him. Ct. Neeraj returned at the spot alongwith HC Ranjit Singh i.e. the Second IO. He further deposed that he handed over the custody of the accused, prepared documents and case property to the Second IO who prepared the site plan at his instance. Second IO recorded his statement and relieved him from the spot. He identified the accused and the case property i.e. buttondar knife Ex. P1.
11.During his cross examination by Sh. S. P. S. Mann, Ld. Counsel for the accused, witness stated that they were patrolling on motorcycle but he could not tell as to upon whose motorcycle. He further stated that the distance between the spot and Police Station was about 2 ½ 3 Km. He further stated that Ct. Neeraj took the rukka to Police Station at about 3.30 pm on motorcycle and he returned alongwith Second IO at the spot at about 4.10 pm. He also admitted that the spot was a public place but no notice was given to the passersby who refused to join the investigation. He further stated that no handing over memo of the seal was prepared by me. He could not tell as to whether this type of knife easily available in the Market or not. He further stated that he finally left the spot at 4.15 pm and he was on foot. He denied the suggestion that he did not join the investigation in the present case or that the buttondar FIR No. 175/06 P. S. Bawana 7 knife was planted upon the accused. He further denied the suggestion that nothing was recovered from the accused or that he was deposing falsely.
12.PW5 HC Ranjit Singh deposed that on 06.05.2006 he was posted at P.S. Bawana as HC and after receiving the copy of FIR and original rukka he alongwith Ct. Neeraj reached at the spot i.e. in front of NDPL Office, Sector3, DSIDC Bawana, Delhi where they met HC Ram Niwas who handed him over the accused Chandan, sealed pullanda and prepared documents. He further deposed that he prepared rough site plan which is Ex. PW5/A and he arrested the accused vide arrest memo already Ex. PW3/C and also conducted the personal search of the accused vide memo already Ex. PW3/D. He further deposed that he recorded the statements of the witnesses. He further deposed that the case property was deposited in the Malkhana. He further deposed that he prepared the challan and filed in the Court. He identified the accused.
13.During his cross examination by Sh. S. P. S. Mann, Ld. Counsel for the accused, witness admitted that the spot was a public place and no public person was made to join in the investigation. He further admitted that no legal notice was given to any passersby who refused to join investigation. He could not tell the time as to when they left the Police Station but he stated that it was evening time. He further stated that Ct. Neeraj was FIR No. 175/06 P. S. Bawana 8 driving the motorcycle and he was sitting as a pillion rider. He further stated that they reached at the spot at about 5.30 pm and he arrested the accused at about 6.30 pm. He further stated that they left the spot at about 7.00 pm. He denied the suggestion that he did not conduct the investigation in this case or that accused was falsely implicated in this case. He further denied the suggestion that nothing was recovered from the accused or that the case property was planted upon him.
14. Thereafter PE was closed and accused was examined U/s 313 Cr.P.C. and all the incriminating evidence coming on record was put to the accused.
15.The accused submitted that he is innocent and has been falsely implicated in this case and denied for leading DE.
16.I have given a considered thought to the rival submissions made by Ld. APP for the state and Ld. Counsel for accused keeping in view the material available on the judicial file.
17. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of the criminal law that in order to prove its case on judicial files prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness if any in the defence of the FIR No. 175/06 P. S. Bawana 9 accused. The burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and its never shifts to the accused and the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
18. As per the deposition of PWs the IO requested some public persons to join the investigation but only one person namely Subhash Nagpal was made to join the investigation but repeatedly summons to abovesaid witness was sent but no person with the name of Subhash was found at the given address. It appears that no person with the name of Subhash ever existed and his name was arranged as a witness to complete the formality as he could not be traced despite sending the summons through DCP(O). After the apprehension of the accused, IO of the case could very well have served the passersby/public witnesses with notice in writing to join the police proceedings inasmuch as at that point of time accused already stood apprehended and there was no possibility of accused escaping his arrest or crime going undetected. At least in the facts and circumstances of the case in my opinion IO must have asked the passersby/persons available at the spot by serving them notice in writing and in case of their refusal IO must have taken action against them U/s 187 IPC. Facts and circumstance of the case suggest that no FIR No. 175/06 P. S. Bawana 10 sincere efforts have been made by police official to join independent public witnesses in the police proceedings. In this regard reliance is being placed on the following judgments: In a case law reported as Anoop Joshi V/s State, 1992 (2) C.C.Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
''It is repeatedly laid down by this Court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC''.
Further in case law reported as Sadhu Singh V/s State of Punjab, 1997 (3) Crimes 55 the Hon'ble Punjab & Haryana High Court observed as under: FIR No. 175/06 P. S. Bawana 11 '' In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused'' ''In the present case, the State examined two witnesses namely, HC Raj Kumar, who appeared as PW1 and HC Harjinder, who appeared as PW2. Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. There can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of nonavailability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service of public witness. This reflects adversely on the prosecution version''.
19. In this matter it is clear from the record that after the apprehension of the accused but before taking the formal/casual search of the accused FIR No. 175/06 P. S. Bawana 12 police official(s), had not offered their own search to the accused before taking the search of the accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty V/s State of Orissa, wherein it was held as under: ''The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. (See AIR 1969 SC 53 : (1969 Cri. L.J 279), State of Bihar V/s Kapil Singh). This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated''.
FIR No. 175/06 P. S. Bawana 13
20. Being guided by above said case law, it can be said that search of the accused by above said police official(s) was in complete violation of the above said case law and the same can be said to be illegal.
21.Prosecution has failed to prove beyond doubts that the accused was found in possession of the buttondar knife as no handing over memo of the seal was prepared at the spot and no public persons was made to join investigation despite availability and the police official did not offer their personal search before searching the accused and this leads to the apprehension of planting of case property upon the accused.
22.The story of the prosecution is also doubtful as there is contradiction in the statement of PWs as PW3 Ct. Neeraj stated in his cross examination that he returned alongwith Second IO at about 5.30 pm whereas PW4 i.e. Second IO HC Ram Niwas stated that they reached at 4.10 and he further stated that he left the spot at 4.15 pm. However, the time of arrest of accused as per arrest memo is 6.30 pm. PWs have also admitted that the spot was a public place despite that no public person was made to join the investigation. No arrival or departure entry of police have been filed on record to prove their presence at the spot.
23.More over connecting evidence is not placed on record to complete chain of events. No corroborating evidence in the form of DD entry vide which PWs have left the police station for patrolling duty is proved on FIR No. 175/06 P. S. Bawana 14 record. It casts doubt over the presence of the PWs who are the police officials and are required to make their arrival and departure entry. Thus evidence which came on the record does not inspire confidence of the court. Also in this case no efforts were made to hand over the seal after use in the presence of independent public persons and in such cases in view of SAIFULLA VS STATE 1998 (1) CCC 497 (DELHI) and ABDUL GAFFAR VS. STATE 1996 JCC 4097 (DELHI) benefit of doubt is to be given to the accused.
24.Hence in these circumstances prosecution having failed to prove its case beyond reasonable doubts, the accused Chandan Kumar @ Alok is hereby acquitted for the offence u/s 25/54/59 Arms Act.
ANNOUNCED IN THE OPEN COURT
TODAY ON 03.08.2012 (MANISH KHURANA )
METROPOLITAN MAGISTRATE
ROHINI DELHI
FIR No. 175/06 P. S. Bawana